United States v. Brannon ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4907
JOSEPH R. BRANNON,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, Chief District Judge.
(CR-01-16)
Submitted: May 31, 2002
Decided: June 20, 2002
Before LUTTIG and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Jason D. Parmer, Morgantown, West Virginia, for Appellant. Robert
H. McWilliams, Jr., Assistant United States Attorney, Wheeling,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BRANNON
OPINION
PER CURIAM:
Joseph R. Brannon appeals his conviction entered on his guilty plea
to aiding and abetting the distribution of crack cocaine in violation of
21 U.S.C. § 841(a) (1994). Brannon noted a timely appeal and his
counsel filed a brief pursuant to Anders v. California, 386 U.S. 738,
744 (1967), in which he represents that there are no arguable issues
of merit in this appeal. Nonetheless, in his brief, counsel addressed
the possibility that the district court committed error at sentencing
based on its determination of relevant conduct and its denial of a
downward adjustment for acceptance of responsibility. The time for
filing a supplemental brief has passed and Brannon has not
responded, despite being informed of his right to do so. Finding no
merit to the claims advanced by counsel and discovering no reversible
error in our own review of the record before us, we affirm Brannon’s
conviction and sentence.
In his brief on appeal, Brannon’s counsel first suggests that the dis-
trict court ran afoul of the Supreme Court’s decision in Apprendi v.
New Jersey, 530 U.S. 466 (2000), by including an uncharged crack
cocaine transaction in the relevant conduct employed for determining
Brannon’s Sentencing Guidelines range. However, as counsel ulti-
mately concludes, there is no Apprendi violation where consideration
of the relevant conduct by the district court does not raise the statu-
tory maximum. Brannon’s 100-month sentence reflects a legitimate
exercise of the district court’s discretion. United States v. Kinter, 235
F.3d 192, 199-200 (4th Cir. 2000), cert. denied, 532 U.S. 937 (2001);
see 21 U.S.C.A. § 841(b)(1)(C) (West 1999 & Supp. 2002) (setting
statutory maximum for Brannon’s offense at twenty years).
Brannon’s counsel also contends that the district court erred in
declining to give him the benefit of a three-level reduction for accep-
tance of responsibility pursuant to USSG § 3E1.1(a). In light of Bran-
non’s conduct while on pretrial release, however, we find no clear
error in the district court’s refusal to award a downward adjustment.
United States v. Hudson, 272 F.3d 260, 263 (4th Cir. 2001); United
States v. Miller, 77 F.3d 71, 74 (4th Cir. 1996). Brannon’s conduct
UNITED STATES v. BRANNON 3
after entering his guilty plea amply demonstrated that he had failed
to accept responsibility for his actions.
As required by Anders, we have independently reviewed the entire
record and all pertinent documents. We have considered all possible
issues presented by this record and conclude that there are no non-
frivolous grounds for this appeal. Pursuant to the plan adopted by the
Fourth Circuit Judicial Council in implementation of the Criminal
Justice Act of 1964, 18 U.S.C. § 3006A (1994), this court requires
that counsel inform his client, in writing, of his right to petition the
Supreme Court for further review. If requested by the client to do so,
counsel should prepare a timely petition for writ of certiorari, unless
counsel believes that such a petition would be frivolous. In that case,
counsel may move in this court for leave to withdraw from represen-
tation. Counsel’s motion must state that a copy thereof was served on
the client. Counsel’s pending motion to withdraw is denied without
prejudice to counsel’s ability to refile the motion in accordance with
this opinion.
Brannon’s conviction and sentence are hereby affirmed. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED